end of the hub is closed by a hub cap which is generally illustrated in the patents to Cochran and Hunt. When this hub cap is removed, the nuts may be unthreaded from the studs and the wheel removed from the support.
The plaintiff's invention provides a means for locking the hub cap in position on the hub so that in order to have access to the nuts, the locking mechanism carried by the hub must be operated. These wheels are held in position by at least five studs as was illustrated by the wheel presented at the hearing, and, therefore, there are at least five nuts inclosed in the hub. By locking the hub cap in position, access to all these nuts is prevented.
It is to be observed that the claims in controversy are all combination claims and all embody, as part of the structure, the type of wheel described. This wheel has an open face hub having at its outer end an inwardly directed circular flange projecting from the inner face of the hub cap. This flange is positioned inwardly of the periphery of the hub cap, and the portion of the cap outwardly of this flange engages against the outer face of the hub. Formed on the hub cap and projecting inwardly from the inner face thereof is a sleeve which provides a chamber 29 in which is mounted a locking device so that when the finger 36 is projected outwardly it will engage behind the inwardly turned flange 18 of the hub and thus secure the hub cap in position on the hub. In this manner the nut caps within the hub are rendered inaccessible.
The court cannot agree with the contention of the defendant that it would not require invention in order to place on the hub cap of Hunt or Cochran a locking mechanism such as Toelle shows. Hub caps have been used for many years. Various and unsightly devices had been resorted to for preventing theft of spare tires prior to the plaintiff's invention.The prior art relied upon by the defendant was available for a number of years to those who sought an attractive and yet efficient device to safely secure the spare sheel and tire of an automobile, but was disregarded. It remained for the plaintiff to take the step forward which involved the exercise of inventive genius. Indeed, the evidence discloses that the number of hub caps sold with a lock mounted thereon at the time of the hearing had exceeded the two million mark.It required more than mechanical skill to accomplish the results shown by the plaintiff's invention.
Furthermore, none of the references show the combination called for, nor are any of the devices of any of the references intended or adapted to function as the plaintiff's invention functions. The patent office has built up a hypothetical structure from a number of patents, and points to this as anticipating the plaintiff's claim. This practice is not approved by the courts. Economy Appliance Co. v. Fitzgerald Mfg. Co. (D.C.) 35 F.2d 756; Detroit Motor Appliance Co. v. Burke (D.C.) 4 F.2d 118; Naylor v. Alsop Process Co. (C.C.A.) 168 F. 911.
Claim 16 was also rejected as reciting an aggregation of unrelated elements. The Examiner held, and he was affirmed by the Board of Appeals, that there was not a "patentable cooperation between the yieldable means 40 carried by the cap to prevent rattling and the lock. The lock would be as effective to protect the wheel against unauthorized removal whether the spring 40 be present or not. The lock produces one result, the spring another entirely different and a totally unrelated one. There is no mutual coaction between these two to produce a single result such as is required to make a patentable combination." The court agrees with the conclusion reached by the Examiner.
The bill alleges that in Interference No. 65,743 there is involved a count embodying a claim drawn to a structure exactly the same in all substantial respects as the structure set out in the plaintiff's application, and does not patentably differ from claim 10 here involved. It is further alleged that the Patent Office has adjudicated and determined that the claim constituting the count in said interference is patentable over the prior art, and that in deciding, the Commissioner of Patents is thereby estopped from denying the patentability of said claim 10 over the prior art.
In view of the conclusions reached by the court, it is unnecessary to deal with the issue thus presented other than to suggest that the question involved in this proceeding is whether the claims here involved are patentable over the prior art.
The court finds that claims 10 to 15, inclusive, are patentable, and that the plaintiff is entitled to receive Letters Patent therefor, and that the Commissioner of Patents should be authorized to issue such patent to the plaintiff.
The court further finds that claim 16 is unpatentable for the reasons stated by the Examiner, and that the plaintiff is not entitled to a patent therefor.
It is so ordered.
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